Happy Birthday Betamax, Old Friend; Here's To The Thirty Years Of Innovation You Enabled

from the and-thank-you,-supreme-court,-for-getting-it-right dept

30 years ago today, the Supreme Court ruled that creators of the Sony Betamax VCR and other new technologies could not be held liable for acts of copyright infringement as long as the device is capable of substantial legitimate uses. This ruling has become the Magna Carta of the technology industry and an ironic gift to the content interests who fought it tooth and nail.

By ruling that people have a right to record over-the-air broadcasting for private use, the Betamax court clarified the rights of copyright holders, innovators and users. In doing so, it enabled a surge of new products, from the DVD to portable music players to online services. It is not hyperbole to say that ruling gave innovators wings, allowing them to bring new technologies to market without asking the content industry for permission first.

Big content fought hard against the Sony Betamax, making wild claims in Washington about how this new product would lead to the destruction of the American film industry. Of course, the opposite happened. While big content obsessed about the "record" button, users focused on the "play" button. The result? A multi-billion dollar industry in pre-recorded media, which now accounts for the majority of Hollywood's profits. This entire revenue stream would not exist but for Justice Stevens, who disregarded content industry pleas and cast the deciding vote in a razor-thin 5-4 decision.

Now Betamax is back in the news, as the broadcasters decry yet another innovation that they claim will destroy their industry. This time the culprit is Aereo, a service that uses individual antennas to send local, free, over-the-air broadcast programming to users' mobile devices. It's a boon to the public, especially to viewers in dense urban areas with broadcast reception challenges.

While the broadcasters acknowledge your right to put up an antenna and run a wire to your TV set, they claim that doing the exact same thing remotely (i.e. simply though a longer wire) is somehow illegal. Their contention has serious implications, especially to the nascent and burgeoning cloud computing and storage industries. Indeed, the Aereo case can be viewed as a backdoor attack on the Cablevision case, in which a federal court affirmed the legality of a remotely controlled digital video recorder (DVR). This decision has unleashed waves of investment and the provision of extraordinary new services to internet users.

The broadcasters fighting Aereo are the very same ones who have been granted billions of dollars in public spectrum at zero cost. As a condition of this massive government subsidy, they are obligated to provide the public with widely available, free programming – exactly what Aereo enables. Rather than embracing technologies that promote access, some networks even claim they will halt over-the-air broadcasting if Aereo is found to be legal. Broadcasters must make their own decisions – but if they believe that broadcasting is no longer a viable business, they should promptly return their spectrum to the public to be used for wireless internet and other productive uses.

Over the last three decades, the technology landscape has changed dramatically. But some things remain the same: legacy industries complain that new services or products disrupt business models, and run to the courts or Congress for relief. But this creative destruction is the story of human progress. Innovation disrupts, new business models arise, unsustainable models die and society reaps the benefits.

I hope that broadcasters eventually recognize the clear lesson of Betamax: embracing new technologies and providing their viewers with extraordinary cutting-edge services will benefit all our industries. I'm glad the Supreme Court has taken this case, and I hope that it will rule for Aereo, innovation and users.

Michael Petricone is Senior Vice President of Government and Regulatory Affairs for the Consumer Electronics Association

I wonder when they'll get what they want and it turns out to be a cannon shot in the feet. That would be amusing albeit tragic for the rest of us. For this is how shortsighted they are, instead of embracing what can skyrocket their profits they chose to throw unthinkable amounts of money to the lawyers and lobbyists.

Read THIS part closely, pirates: "for private use". -- Does NOT mean "sharing" with everyone in the world!

"entire revenue stream would not exist" -- SHEESH, WHAT A LIE. You jump from broadcast television to movies made long before, and simply assert that those movies wouldn't even exist, eh? "Big content" had the product wanted, but you in typical Techdirt fashion, assert exactly opposite of truth: the "revenue stream" wouldn't exist if copyright wasn't enforceable, if everyone were actually free to "share".

"been granted billions of dollars in public spectrum at zero cost" -- NOT TRUE! First, public stills OWNS the spectrum; broadcasters are licensed to use it for a time. 2nd, COSTS ARE HIGH to produce the CONTENT, you dolt! 3rd, the public gets the benefit of that, essentially for free when broadcast. 4th, Aereo, a for-profit business does NOT have any right to take the content others paid for and "monetize" it, even if persons do have some "long wire" right!Copyright holders wanting to be paid is NOT tyranny, no matter how much you want pornz for free.

Re: Read THIS part closely, pirates: "for private use". -- Does NOT mean "sharing" with everyone in the world!

The real adversaries

Nice to see a check-in on this subject from the CEA... thanks for that. Lends legitimacy to note that it's not just IP libertarians and contrary-thinkers who feel strongly about this.

We should note a semantic problem, however, with characterizing the adversaries as "broadcasters". In very many cases, that term really ought to refer to the thousands of small station owners, sometimes mom-and-pop outfits, who try to serve their regions and communities with local programming. In my experience, they're not too concerned with monetizing their signal with per-subscriber payments from a cable system. That only comes into play when you're dealing with millions of subs; and that means that the true opposition... the villains... would be the media conglomerates, the Viacoms and Universals of the world. As you note, they're using the airways free of charge, and attempting to generate millions -- billions? -- in unearned revenue with cable carriage fees. That's a revisionist business model (translate: carpetbagger); the original idea was to monetize with advertising sales. Aereo is a threat to their double-dipping scheme.

But be careful about tarring small broadcasters with the same brush as greedy corporations...

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I have that book, and while Terry is right that it's an absolutely worthwhile read, he is *totally* distorting the history as displayed in the book. That, by the way, is a specialty of Terry -- who you fail to note, is PAID to distort copyright in favor of the anti-union corporate lobbyists he works for.

For example, just take this bullshit line:

There are some who would say that the lesson of Betamax—or at least the fable version—is that the Copyright Act should be construed to favor tech companies over artists and creators.

Except that's been said by no one ever. What everyone has said, and which people like you and Terry refuse to acknowledge or recognize, is that the lesson is that the Copyright Act should be construed to favor what's *best for everyone* and with the case of new innovations that's often letting the innovation go forward. That's not *over artists and creators* but actually IN SUPPORT of them.

That's what's so frustrating about Terry's brand of bullshit (that you repeatedly endorse). You are blatantly distorting the basic fact that artists and creators are better off with this kind of innovation and that it's just *THE BIG CORPORATE GATEKEEPERS* who often *screw over* artists and creators who are harmed by innovation.

So, rather than repeating Terry's bullshit, I recommend people read that book and a number of other good ones about the gatekeepers fucking over artists and creators, compared to all the new opportunities created by innovators.

Which side are you on? A bunch of dying gatekeepers? You're on the shit side of history. As always. But don't bitch when you get run over by innovators, the public, artists and creators all together. Betting on obsolete gatekeepers is a sucker's bet. Are you a paid-in-full sucker like Terry?

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Which side are you on? A bunch of your reviled "old gatekeepers" who in one form or another compensate those who have labored to create a work for introduction to the marketplace with the hope that it will find traction and generate revenue, or your "new gatekeepers" who by and large use such works as enticements for generating revenue in which virtually none of that revenue is received by the laborers as compensation? For those who would likely not find a "sugar daddy" financier under the historic model, then the latter does provide beneficial opportunities. For those who can find such financing under the old model, it is hard to figure out how those creators are better off being compensated for the work being introduced into the public, and not some future work or having to engage in your "t-shirt/tour/wade into the crowds" business model. This does not dismiss the possibility, but only an observation that "new" is better than "old", and one is a dinosaur to believe otherwise.

BTW, only a very few of the "old gatekeeper" aficionados speak ill of the internet being of significant benefit to at least those who would otherwise labor in obscurity. Your mocking generalizations to the contrary, those who do not reject "old gatekeepers" do not reject other means of marketing their works. They merely try and point out that your unassailable "evidence" proving you are right and they are, to use the clear implication of your comment above, spouting BS and paid shills who have no counter-arguments to your "evidence", reflects upon you as one simply refuses to provide a fair consideration of arguments that may in whole or in part contradict yours.

BTW, I do hope that Aereo is reversed and the holding in Cablevision rendered a nullity. This is my hope, but not my prediction, because I happen to believe, based upon the text of the Copyright Act, that Aereo is transgressing the law. You appear to harbor no doubt about who is right and who is wrong, and speak of the case in declarative terms. Of course, if this was so it seems unlikely the case would have been granted cert. and set for argument. This does not mean a reversal will transpire, but only that your almost cocksure attitude that the petitioner is dead wrong and wasting its time, but it should give you some pause for concern that perhaps the Supreme Court does not share your sentiments.

One last time, and cut the BS. Quit trying to marginalize opinions expressed here by ad hominem charges against those who may express concern over some of the statements made at this site concerning IP law. I know this is hard to grasp, but virtually all such opinions are based upon personal views of what the law is believed to be based upon study of the legislation and a large swath of case law, journal articles, etc., and not some grand conspiracy to purposely misstate in order to engender confusion and represent the interest of some specific individual and/or group. Nimmer and Patry, among others, write about issues where their comments do not in many instances merry up with yours. Does this make them shills?

If you tone seems unduly harsh, I believe you will find any subsequent comments here much more circumspect if any response you may present is respectful and shows a willingness to engage in constructive discussions on issues of mutual interest.

As for Betamax, would you find it surprising to learn that since the first time I read the advance sheets of the opinion when it was released and every time thereafter I have had occasion to re-read the case I have never found it to be one where fair use was even a material issue to the holding? The sole issue was contributory infringement, and the court's holding was so limited. Anything mentioning fair use was unnecessary to the Court's holding and I believe is nothing more that orbiter dicta, i.e., merely a gratuitous comment.

I might as well reveal one of the things I wished for my on my 25th birthday a couple weeks ago. I wished that someone could turn up here on Techdirt and make a decent argument in favour of copyright law. I wished for that someone to state their position calmly, politely, with no ad-homs or signs of exasperation and with a good grasp of the fundamental rules of composition. Sadly, I fully expect that wish to go unfulfilled...

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I think copyright---as it was originally intended and truly for a limited time---still has a place today, even as so much becomes digital, for a couple of reasons.

One reason has to do with attribution. ("Authorship" was the word I was going to use here.) If I were to write a novel, I would be offended if I found that someone else was trying to pass it off as their own, and I believe rightfully so. This is something like the "moral right of the author" that seems more prominent in other jurisdictions. If I write something (photograph something, paint something, etc., digitally or otherwise) I believe I have the right to be identified as its author if I choose to be. Copyright is one way to ensure that, although it may not be the only way possible.

The other main reason is the monopoly aspect of copyright. (In a way I think this is related to attribution.) Again using writing as an example, if I were to write a novel and publish it (in any form) with the intent to sell, I believe there should be a legal means of preventing third parties from selling copies on their own without permission. From my point of view, if doesn't matter whether or not I plan to make a living writing, make a little extra money, or just wanted to publish and don't care about the money at all. Someone else shouldn't be able to do it, not without permission. (Which may or may not necessarily take the form of royalties.)

As it was originally intended, I believe copyright is a reasonable way to achieve both these goals: attribution and, for lack of a better word, compensation. It's certainly not perfect, but it seems a reasonable tradeoff in exchange for the work becoming public domain afterward.

That's the part, in my mind, that has become the most altered from the original intent of copyright. I don't believe "life plus 70 years" is appropriately "limited" although I admit that's a matter of opinion. When I sit down to write, I certainly don't consider my grandchildren as potential beneficiaries of my work. (Aside from name recognition, which is why I feel that attribution rights shouldn't necessarily go away at all. But I'm not sure that's a problem in the real world.) A shorter copyright term, perhaps with an optional, one-time renewal, is a much more equitable duration in my mind. Even with 28 years plus 28-year renewal, that represents a good portion of an author's lifetime during which they can benefit from their work however they choose. After that, it belongs to the public domain, which benefits society in general in all the ways that readers here are already familiar with. And for the very young author that writes a worldwide bestseller at a young age and outlives the copyright? It might feel unfair to finally lose control after that point, but they had the benefit of 56 years of copyright monopoly, and more to the point that was the deal they made (with the public, "culture", or whatever) in the beginning to get those benefits.

And for every Tolkien, Rowling, Disney, Spielburg, etc., there are hundreds if not thousands of others who will never know that kind of success. How many books or films will never be seen again because they weren't valuable enough---to someone---to keep in print?

I don't know if that fulfills your wish or not, but it's the best I could do. I for one do think that copyright serves a useful purpose, though that purpose has been eroded almost beyond recognition. I'm also still hopeful that we can turn things around, although at this point I'm not sure what kind of cultural disaster it might take to do it.

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Thank you. My wish has been granted. I can understand your premise and somewhat agree with you as to your reasons, but I oppose copyright purely for free speech and property rights.

Where it comes to property, it means that many of the machines that I buy do not actually transfer into my ownership. I may own the physical hardware, but I cannot reprogram or alter the device. Think the PS3 and Geohot. Where it not for copyright, anyone would be free to reprogram their machine to do whatever it is they want, but thanks to copyright, nope. As for free speech, copyright takes away my right to speech. It starts a process of self censorship, where if I want to make a point say in a Youtube video, I have to be careful about what it is I use. As for your point about selling your content - copyright does not grant you the ability to sell your works. You already have that . Give us a reason to buy from you. Instead of using legal power to quash other sellers, use social pressure and the power of social media to say to your fans to buy only from people you specify. Make your work available worldwide, with no bullshit geo-restrictions, and, as long as your work is good, your fans will gladly pay. If you gain enough of a following, and gain enough influence, you won't need to use the legal system to stop unauthorised sellers of your works - they'll either won't have a detrimental effect to your income or simply fade from existence.I'm saying this as a former hardcore pirate. Now I have a huge Steam library and pay to stream the shows I want to watch.

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To be fair, I was thinking mainly in terms of the more "traditional" forms of media: books, films, things like that. And I agree, all else being equal one shouldn't need to resort to legal methods to stop someone else from selling your work if you don't want them to do it.

If you gain enough of a following, and gain enough influence, you won't need to use the legal system to stop unauthorised sellers of your works

I agree with you on that. But for everyone who doesn't have that kind of following or influence, there should be somewhere for them to turn to achieve the same goals it comes to that.

Maybe I'm stuck too much in the mindset of those "traditional" types of media and distribution, I don't know. Bottom line, for me personally, is that it seems unfair to allow a situation where someone else can sell---potentially even profit from---something you yourself did and are trying to sell, and to provide no legal avenues to prevent it other than appealing to buyers to do the right thing.

"Unfair" is subjective, of course. And not necessarily a good reason to do anything. But it's why I think there needs to be at least some level of copyright. Abuse is possible, certainly, but that's not a reason to have nothing at all, either.

And I'm not advocating for the kind of all-encompassing, self-censorship-inducing copyright that would pounce on Youtube remixes or reprogramming your PS3. I think you should have every right to do both, I'm just saying---in that context---that you shouldn't necessarily have the right to build and sell PS3s yourself. I'm 100% against hardware restrictions, location restrictions, and anything else of the sort. My own recent struggles with an HDMI splitter have seen me shouting at the evils of HDCP stopping me from watching a blu-ray (which I paid for) on the TV in the other room.

Maybe the problem is that "copyright" has become that big, all-encompassing thing in the first place.

As someone who writes (I won't say "writer" because it isn't my day job) all I really want is 1) to be recognized as the author of what I wrote if I choose to be, and 2) to have some way to stop others from making money off what I've written without my permission. Item 1 ought to be universal. Item 2 doesn't have to be, although having a say in it for at least a little while seems fair.

In a perfect world, I think there wouldn't be any need for copyright at all. A person could create their work, whatever it happened to be, offer it to the world, make money at it if they wanted, and not have to worry about the rest. It's just that I'm not sure we're there yet, not completely.

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I suppose we should chalk this up to agree to disagree? I respect your opinion and do understand your desire to be compensated for your work - I'm just of the opinion that in a world where one group of people argue for the restriction of speech and property rights from everybody else (no matter how benign your intentions are in the first place), then you simply don't deserve it. Perhaps I blame what copyright has become, and refuse to recognise any potential benefits it had in its original form and so have become soured on the whole idea, but I don't want to give up my inherent rights merely so someone else can attempt to make a living. It's too high a price for me to willingly pay.

BTW, I'm first wording your comment as a shining example of how someone should argue for copyright. I disagree, but you explained yourself well. Hopefully certain people who shall go nameless can learn from your example.

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I can live with that. (Agreeing to disagree.)

I don't really think we're all that far apart though, not really. Maybe it's just a matter of point of view, or semantics, or something.

For example (and it's okay if we wrap up at this point, I don't mean to keep things going unnecessarily) I'd use your exact words: "I don't want to give up my inherent rights merely so someone else can attempt to make a living." I would probably say almost exactly the same thing, just from the other side. That is, don't I have inherent rights as the author that a third party would be violating by selling something I wrote without permission?

It's a fuzzy area, I admit, and I don't claim to have all the answers. Like so much else the only way to go is compromise, and by necessity that's never perfect either. I do think we can do a lot better than the current state of things, though.

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Good arguments on both sides, guys.

I'm sort of halfway between both of you, for the record. What we need to do is promote alternative business models that compensate creatives fairly so they don't feel the need to rely on copyright for a living.